57020 Federal Register / Vol. 88, No. 161 / Tuesday, August 22, 2023 / Proposed Rules 

1 In March 2008, EPA completed another review 

of the primary and secondary ozone standards and 

tightened them further by lowering the level for 

both to 0.075 ppm. 73 FR 16436 (March 27, 2008). 

Additionally, in October 2015, EPA completed a 

review of the primary and secondary ozone 

standards and tightened them by lowering the level 

for both to 0.070 ppm. 80 FR 65292 (October 26, 

2015). 

2The requirements of CAA section 107(d)(3)(E) 

include attainment of the NAAQS, full approval 

under section 110(k) of the applicable SIP, 

determination that improvement in air quality is a 

result of permanent and enforceable reductions in 

emissions, demonstration that the state has met all 

applicable section 110 and part D requirements, and 

a fully approved maintenance plan under CAA 

section 175A. 

3See 80 FR 12315 (March 6, 2015). 

4 882 F.3d 1138 (D.C. Cir. 2018). 

* * * * * 

[FR Doc. 2023–17986 Filed 8–21–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2023–0089; FRL–10213– 

01–Region 3] 

Air Plan Approval; Virginia; 1997 8- 

Hour Ozone National Ambient Air 

Quality Standard Second Maintenance 

Plan for the Hampton Roads Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

state implementation plan (SIP) revision 

submitted by the Commonwealth of 

Virginia (Commonwealth or Virginia). 

This revision pertains to the 

Commonwealth’s plan, submitted by the 

Virginia Department of Environmental 

Quality (VADEQ), for maintaining the 

1997 8-hour ozone national ambient air 

quality standard (NAAQS) (referred to 

as the 1997 ozone NAAQS) in the 

Norfolk-Virginia Beach-Newport News 

(Hampton Roads), VA Area (Hampton 

Roads Area or Area). This action is 

being taken under the Clean Air Act 

(CAA). 

DATES: Written comments must be 

received on or before September 21, 

2023. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R03– 

OAR–2023–0089 at 

www.regulations.gov, or via email to 

gordon.mike@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

confidential business information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

www.epa.gov/dockets/commenting-epadockets. 

FOR FURTHER INFORMATION CONTACT: Om 

P. Devkota, Planning & Implementation 

Branch (3AD30), Air & Radiation 

Division, U.S. Environmental Protection 

Agency, Region III, Four Penn Center, 

1600 John F. Kennedy Boulevard, 

Philadelphia, Pennsylvania 19103. The 

telephone number is (215) 814–2172. 

Mr. Devkota can also be reached via 

electronic mail at devkota.om@epa.gov. 

SUPPLEMENTARY INFORMATION: On 

September 9, 2022, the VADEQ 

submitted a revision to the Virginia SIP 

to incorporate a plan for maintaining the 

1997 ozone NAAQS through December 

31, 2032 in accordance with CAA 

section 175A. 

I. Background 

In 1979, under section 109 of the 

CAA, EPA established primary and 

secondary NAAQS for ozone at 0.12 

parts per million (ppm), averaged over 

a 1-hour period. 44 FR 8202 (February 

8, 1979). On July 18, 1997 (62 FR 

38856),1 EPA revised the primary and 

secondary NAAQS for ozone to set the 

acceptable level of ozone in the ambient 

air at 0.08 ppm, averaged over an 8-hour 

period. EPA set the 1997 ozone NAAQS 

based on scientific evidence 

demonstrating that ozone causes 

adverse health effects at lower 

concentrations and over longer periods 

of time than was understood when the 

pre-existing 1-hour ozone NAAQS was 

set. 

Following promulgation of a new or 

revised NAAQS, EPA is required by the 

CAA to designate areas throughout the 

nation as attaining or not attaining the 

NAAQS. On April 30, 2004 (69 FR 

23858), EPA designated the Hampton 

Roads Area as moderate nonattainment 

for the 1997 ozone NAAQS. The 1997 

Hampton Roads Ozone Maintenance 

Area includes the counties of 

Gloucester, Isle of Wight, James City, 

and York, as well as the cities of 

Chesapeake, Hampton, Newport News, 

Norfolk, Poquoson, Portsmouth, Suffolk, 

Virginia Beach, and Williamsburg. 

Once a nonattainment area has three 

years of complete and certified air 

quality data that has been determined to 

attain the NAAQS, and the area has met 

the other criteria outlined in CAA 

section 107(d)(3)(E),2 the state can 

submit a request to EPA to redesignate 

the area to attainment. Areas that have 

been redesignated by EPA from 

nonattainment to attainment are referred 

to as ‘‘maintenance areas.’’ One of the 

criteria for redesignation is to have an 

approved maintenance plan, under CAA 

section 175A. The maintenance plan 

must demonstrate that the area will 

continue to maintain the standard for 

the period extending 10 years after 

redesignation, and it must contain such 

additional measures as necessary to 

ensure maintenance as well as 

contingency measures as necessary to 

assure that violations of the standard 

will be promptly corrected. 

On June 1, 2007 (72 FR 30490), EPA 

approved a redesignation request (and 

maintenance plan) from VADEQ for the 

Hampton Roads Area. EPA published 

final approval of the redesignation 

request and maintenance plan on June 

1, 2007 (72 FR 30490), and, as of that 

time, the area was designated as 

attainment for the 1997 ozone NAAQS. 

In accordance with CAA section 

175A(b), at the end of the eighth year 

after the effective date of the 

redesignation, the state must also 

submit a second maintenance plan to 

ensure ongoing maintenance of the 

standard for an additional 10 years. 

EPA’s final implementation rule for 

the 2008 ozone NAAQS revoked the 

1997 ozone NAAQS and provided that 

one consequence of revocation was that 

areas that had been redesignated to 

attainment (i.e., maintenance areas) for 

the 1997 ozone NAAQS no longer 

needed to submit second 10-year 

maintenance plans under CAA section 

175A(b).3 However, in South Coast Air 

Quality Management District v. EPA 4

(South Coast II), the United States Court 

of Appeals for the District of Columbia 

vacated EPA’s interpretation that, 

because of the revocation of the 1997 

ozone standard, second maintenance 

plans were not required for ‘‘orphan 

maintenance areas,’’ (i.e., areas like the 


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5See ‘‘Limited Maintenance Plan Option for 

Nonclassifiable Ozone Nonattainment Areas’’ from 

Sally L. Shaver, Office of Air Quality Planning and 

Standards (OAQPS), dated November 16, 1994. 6 ‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air Quality 

Management Division, September 4, 1992 (1992 

Calcagni Memo). 7See ‘‘Limited Maintenance Plan Option for 

Nonclassifiable Ozone Nonattainment Areas’’ from 

Sally L. Shaver, Office of Air Quality Planning and 

Standards (OAQPS), dated November 16, 1994; 

‘‘Limited Maintenance Plan Option for 

Nonclassifiable CO Nonattainment Areas’’ from 

Joseph Paisie, OAQPS, dated October 6, 1995; and 

‘‘Limited Maintenance Plan Option for Moderate 

PM10 Nonattainment Areas’’ from Lydia Wegman, 

OAQPS, dated August 9, 2001. 8The ozone design value for a monitoring site is 

the 3-year average of the annual fourth-highest daily 

maximum 8-hour average ozone concentrations. 

The design value for an ozone nonattainment area 

is the highest design value of any monitoring site 

in the area. 9For more information, see EPA’s June 1, 2007 

‘‘Approval and Promulgation of Air Quality 

Implementation Plans; Virginia; Redesignation of 

the Hampton Roads 8-Hour Ozone Nonattainment 

Area to Attainment and Approval of the Area’s 

Maintenance Plan and 2002 Base-Year Inventory’’ 

(72 FR 30490). 

10The design values for the Hampton Roads 

maintenance area for each of the three-year averages 

containing 2016 are 0.064 ppm for 2014–2016, 

0.065 ppm for 2015–2017, and 0.064 ppm for 2016– 

2018. Since these values are well beneath the 1997 

ozone NAAQS of 0.08 ppm, the 2016 emissions 

inventory is a suitable inventory to use as an 

attainment inventory for this second maintenance 

plan. 

11For more information, visit www.epa.gov/airemissions-modeling/2016v2-platform. 

Hampton Roads Area) that had been 

redesignated to attainment for the 1997 

ozone NAAQS and were designated 

attainment for the 2008 ozone NAAQS. 

Thus, states with these ‘‘orphan 

maintenance areas’’ under the 1997 

ozone NAAQS must submit 

maintenance plans for the second 

maintenance period. 

As previously discussed, CAA section 

175A sets forth the criteria for adequate 

maintenance plans. In addition, EPA 

has published longstanding guidance 5

that provides further insight on the 

content of an approvable maintenance 

plan, explaining that a maintenance 

plan should address five elements: (1) 

an attainment emissions inventory; (2) a 

maintenance demonstration; (3) a 

commitment for continued air quality 

monitoring; (4) a process for verification 

of continued attainment; and (5) a 

contingency plan. The 1992 Calcagni 

Memo 6 provides that states may 

generally demonstrate maintenance by 

either performing air quality modeling 

to show that the future mix of sources 

and emission rates will not cause a 

violation of the NAAQS or by showing 

that future emissions of a pollutant and 

its precursors will not exceed the level 

of emissions during a year when the 

area was attaining the NAAQS (i.e., 

attainment year inventory). See 1992 

Calcagni Memo at p. 9. EPA further 

clarified in three subsequent guidance 

memos describing ‘‘limited maintenance 

plans’’ (LMPs) 7 that the requirements of 

CAA section 175A could be met by 

demonstrating that the area’s design 

value 8 was well below the NAAQS and 

that the historical stability of the area’s 

air quality levels showed that the area 

was unlikely to violate the NAAQS in 

the future. Specifically, EPA believes 

that if the most recent air quality design 

value for the area is at a level that is 

below 85% of the standard, or in this 

case below 0.071 ppm, then EPA 

considers the state to have met the 

section 175A requirement for a 

demonstration that the area will 

maintain the NAAQS for the requisite 

period. Accordingly, on September 9, 

2022, VADEQ submitted the Hampton 

Roads Area second maintenance plan, 

following the LMP guidance, and 

demonstrating that the area will 

maintain the 1997 ozone NAAQS 

through December 31, 2032, i.e., 

through the entire second maintenance 

period. Starting from January 1, 2033, 

after this maintenance plan expires, the 

Area will no longer be bound by the 

general conformity requirements and 

transportation conformity requirements 

outlined in section 176 of the CAA. 

However, any other control programs 

will continue to be in effect, unless 

there is evidence to show that they are 

unnecessary for complying with the 

1997 ozone NAAQS. 

II. Summary of SIP Revision and EPA 

Analysis 

VADEQ’s September 9, 2022 SIP 

submittal outlines a plan for continued 

maintenance of the 1997 ozone NAAQS 

which addresses the criteria set forth in 

the 1992 Calcagni memo as follows. 

A. Attainment Emissions Inventory 

For maintenance plans, a state should 

develop a comprehensive and accurate 

inventory of actual emissions for an 

attainment year which identifies the 

level of emissions in the area which is 

sufficient to maintain the NAAQS. The 

inventory should be developed 

consistent with EPA’s most recent 

guidance. For ozone, the inventory 

should be based on typical summer 

day’s emissions of oxides of nitrogen 

(NOX) and volatile organic compounds 

(VOC), the precursors to ozone 

formation. In the first maintenance plan 

for the Hampton Roads Area, VADEQ 

used 2005 for the attainment year 

inventory, because 2005 was one of the 

years in the 2003–2005 three-year 

period when the area first attained the 

1997 ozone NAAQS.9 The Hampton 

Roads Area continued to monitor 

attainment of the 1997 ozone NAAQS in 

2016. Therefore, the emissions 

inventory from 2016 represents 

emissions levels conducive to continued 

attainment (i.e., maintenance) of the 

NAAQS.10 Thus, VADEQ is using 2016 

as representing attainment level 

emissions for its second maintenance 

plan. Virginia used 2016 summer day 

emissions from EPA’s 2016 version 2.0 

modeling platform 11 as the basis for the 

2016 inventory presented in Table 1 in 

this document. 

TABLE 1—2016 TYPICAL SUMMER DAY VOC AND NOX EMISSIONS (tons/day) FOR HAMPTON ROADS AREA

Name Source category VOC 

emissions 

NOX

emissions 

Gloucester County ..................................................................................... Point ................................................ 0.0690 0.4076 

Nonpoint .......................................... 2.1190 0.1218 

Onroad ............................................. 0.7055 1.0346 

Nonroad ........................................... 1.0918 3.2830 

Isle of Wight County .................................................................................. Point ................................................ 0.8257 1.4711 

Nonpoint .......................................... 1.1699 0.4066 

Onroad ............................................. 0.7703 1.4166 

Nonroad ........................................... 0.5220 0.5769 

James City County .................................................................................... Point ................................................ 0.3748 1.3513 

Nonpoint .......................................... 2.1067 0.4862 

Onroad ............................................. 0.8237 1.7141 

Nonroad ........................................... 1.0240 1.5179 


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12The NEI is a comprehensive and detailed 

estimate of air emissions of criteria pollutants, 

criteria precursors, and hazardous air pollutants 

from air emissions sources. The NEI is released 

every three years based primarily upon data 

provided by State, Local, and Tribal air agencies for 

sources in their jurisdictions and supplemented by 

data developed by EPA. 

TABLE 1—2016 TYPICAL SUMMER DAY VOC AND NOX EMISSIONS (tons/day) FOR HAMPTON ROADS AREA—Continued 

Name Source category VOC 

emissions 

NOX

emissions 

York County ............................................................................................... Point ................................................ 1.7402 12.8452 

Nonpoint .......................................... 2.9341 0.2426 

Onroad ............................................. 0.8814 1.8463 

Nonroad ........................................... 1.5854 1.0722 

City of Chesapeake ................................................................................... Point ................................................ 1.6099 2.7698 

Nonpoint .......................................... 9.3508 1.4014 

Onroad ............................................. 2.8211 5.1701 

Nonroad ........................................... 1.9042 3.0290 

City of Hampton ......................................................................................... Point ................................................ 0.1701 0.1629 

Nonpoint .......................................... 3.2443 0.3825 

Onroad ............................................. 1.6943 2.8409 

Nonroad ........................................... 1.1797 5.0726 

City of Newport News ................................................................................ Point ................................................ 1.3226 3.1034 

Nonpoint .......................................... 6.5468 2.1701 

Onroad ............................................. 2.0997 3.3499 

Nonroad ........................................... 2.0554 0.9644 

City of Norfolk ............................................................................................ Point ................................................ 1.4293 2.7084 

Nonpoint .......................................... 8.3975 1.0968 

Onroad ............................................. 2.6110 4.3803 

Nonroad ........................................... 1.7455 6.4235 

City of Poquoson ....................................................................................... Point ................................................ 0.00 0.00 

Nonpoint .......................................... 0.2597 0.0245 

Onroad ............................................. 0.1318 0.1137 

Nonroad ........................................... 0.2712 0.1425 

City of Portsmouth ..................................................................................... Point ................................................ 0.0177 3.7311 

Nonpoint .......................................... 3.9935 0.3437 

Onroad ............................................. 1.2541 1.6801 

Nonroad ........................................... 0.4959 0.3991 

City of Suffolk ............................................................................................ Point ................................................ 0.0478 0.0427 

Nonpoint .......................................... 2.5712 0.6950 

Onroad ............................................. 1.1467 3.1387 

Nonroad ........................................... 0.6860 1.4919 

City of Virginia Beach ................................................................................ Point ................................................ 3.1577 0.6830 

Nonpoint .......................................... 12.4218 1.4933 

Onroad ............................................. 5.2219 6.3737 

Nonroad ........................................... 4.0864 5.4491 

City of Williamsburg ................................................................................... Point ................................................ 0.00 0.00 

Nonpoint .......................................... 0.3454 0.0984 

Onroad ............................................. 0.1810 0.1919 

Nonroad ........................................... 0.1640 0.1363 

The data shown in Table 1 in this 

document is based on the 2017 National 

Emissions Inventory (NEI) version 2.12

The inventory addresses four 

anthropogenic emission source 

categories: Stationary (point) sources, 

stationary nonpoint (area) sources, 

nonroad mobile, and onroad mobile 

sources. Point sources are stationary 

sources that have the potential to emit 

(PTE) more than 100 tons per year (tpy) 

of VOC, or more than 50 tpy of NOX, 

and which are required to obtain an 

operating permit. Data are collected for 

each source at a facility and reported to 

VADEQ. Examples of point sources 

include municipal solid waste 

incinerators, landfills, and electric 

generating units. Nonpoint sources 

include emissions from equipment, 

operations, and activities that are 

numerous and in total have significant 

emissions. Examples include emissions 

from commercial and consumer 

products, residential wood combustion, 

home heating, and small commercial 

operations such as vehicle refinishing. 

The onroad emissions sector includes 

emissions from engines used primarily 

to propel equipment on highways and 

other roads, including passenger 

vehicles, motorcycles, and heavy-duty 

diesel trucks. The nonroad emissions 

sector includes emissions from engines 

that are not primarily used to propel 

transportation equipment. Examples of 

equipment in the nonroad category 

include lawn equipment, construction 

equipment, commercial shipping, 

locomotives, and pleasure craft. EPA 

reviewed the emissions inventory 

submitted by VADEQ and proposes to 

conclude that the plan’s inventory is 

acceptable for the purposes of a 

subsequent maintenance plan under 

CAA section 175A(b). 

B. Maintenance Demonstration 

In order to attain the 1997 ozone 

NAAQS, the three-year average of the 

fourth-highest daily average ozone 

concentrations (design value or ‘‘DV’’) at 

each monitor within an area must not 

exceed 0.08 ppm. Based on the 

rounding convention described in 40 

CFR part 50, appendix I, the standard is 

attained if the DV is 0.084 ppm or 

below. CAA section 175A requires a 

demonstration that the area will 

continue to maintain the NAAQS 

throughout the duration of the requisite 

maintenance period. Consistent with the 

prior guidance documents discussed 

previously in this document as well as 

EPA’s November 20, 2018 ‘‘Resource 

Document for 1997 Ozone NAAQS 

Areas: Supporting Information for States 

Developing Maintenance Plans’’ (2018 


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13This resource document is included in the 

docket for this rulemaking available online at 

www.regulations.gov, Docket ID: EPA–R03–OAR– 

2023–0089 and is also available at /www.epa.gov/ 

sites/default/files/2018-11/documents/ozone_1997_

naaqs_lmp_resource_document_nov_20_2018.pdf. 

14See also Figure-2 and Table 3 of VADEQ’s 

September 9, 2022 submittal, ‘‘Commonwealth of 

Virginia State Implementation Plan Revision 

Second Maintenance Plan 1997 Ozone National 

Ambient Air Quality Standards Hampton Roads 

Maintenance Area,’’ included in the docket for this 

rulemaking available online at 

/www.regulations.gov, Docket ID: EPA–R03–OAR– 

2023–0089. 15This data is also included in the docket for this 

rulemaking available online at 

www.regulations.gov, Docket ID: EPA–R03–OAR– 

2023–0089 and is also available at www.epa.gov/airtrends/air-quality-design-values#report. 16AQS site 516500008’s design values were first 

available in 2010–2012 as this new site replaced a 

different Hampton City monitoring site that is no 

longer in existence. For more information see 

www.epa.gov/air-trends/air-quality-design-values. 

17See U.S. EPA, ‘‘Air Quality Modeling Technical 

Support Document for the Updated 2023 Projected 

Ozone Design Values’’, Office of Air Quality 

Planning and Standards, dated June 2018, available 

at www.epa.gov/sites/default/files/2018-06/ 

documents/aq_modelingtsd_updated_2023_

modeling_o3_dvs.pdf. 

18As explained in EPA’s April 13, 2007 

document proposing ‘‘Approval and Promulgation 

of Air Quality Implementation Plans; Virginia; 

Redesignation of the Hampton Roads 8-Hour Ozone 

Nonattainment Area to Attainment and Approval of 

the Associated Maintenance Plan and 2002 BaseYear Inventory for the 1997 ozone NAAQS’’ (72 FR 

18602), the 2003–2005 average DV for the Hampton 

Roads Area was 0.078 ppm. 

Resource Document),13 EPA believes 

that if the most recent DV for the area 

is well below the NAAQS (i.e., below 

85%, or in this case below 0.071 ppm), 

the section 175A demonstration 

requirement has been met, provided that 

Prevention of Significant Deterioration 

(PSD) requirements, any control 

measures already in the SIP, and any 

Federal measures remain in place 

through the end of the second 

maintenance period (absent a showing 

consistent with section 110(1) that such 

measures are not necessary to assure 

maintenance). 

For the purposes of demonstrating 

continued maintenance with the 1997 

ozone NAAQS, VADEQ provided 3-year 

DVs for the Hampton Roads Area from 

2001 to 2021. This includes DVs for 

2001–2003, 2002–2004, 2003–2005, 

2004–2006, 2005–2007, 2006–2008, 

2007–2009, 2008–2010, 2009–2011, 

2010–2012, 2011–2013, 2012–2014, 

2013–2015, 2014–2016, 2015–2017, 

2016–2018, 2017–2019, 2018–2020, and 

2019–2021. 2007–2009 through 2019– 

2021 are shown in Table 2 of this 

document.14 In addition, EPA has 

reviewed the most recent ambient air 

quality monitoring data for ozone in the 

Hampton Roads Area, as submitted by 

Virginia and recorded in EPA’s Air 

Quality System (AQS). The most recent 

DV (i.e., 2019–2021) at monitors located 

in the Hampton Roads Area are also 

shown in Table 2 of this rulemaking 

action.15 There currently are three 

operating ozone monitoring sites in the 

Hampton Roads Area, two in Suffolk 

City (monitors 518000004 and 

518000005) and one in Hampton City 

(monitor 516500008). As can be seen in 

Table 2 in this document, DVs at all 

monitors located in the Hampton Roads 

Area have been well below 85% of the 

1997 ozone NAAQS (i.e., 0.071 ppm) 

since the 2012–2014 period. The highest 

DV for the 2019–2021 period at a 

monitor in the Hampton Roads Area is 

0.058 ppm, which is well below the 

1997 ozone NAAQS. 

TABLE 2—RECENT 1997 OZONE NAAQS DESIGN VALUES (ppm) AT MONITORING SITES IN THE HAMPTON ROADS AREA

Jurisdiction Hampton City Suffolk City Suffolk City 

AQS site ID 516500008 518000004 518000005 

2007–2009 ................................................................................................................................... ........................ 0.072 0.073 

2008–2010 ................................................................................................................................... ........................ 0.071 0.072 

2009–2011 ................................................................................................................................... ........................ 0.071 0.070 

2010–2012 16 ............................................................................................................................... 0.076 0.073 0.071 

2011–2013 ................................................................................................................................... 0.072 0.070 0.068 

2012–2014 ................................................................................................................................... 0.067 0.064 0.065 

2013–2015 ................................................................................................................................... 0.064 0.061 0.062 

2014–2016 ................................................................................................................................... 0.064 0.060 0.061 

2015–2017 ................................................................................................................................... 0.065 0.061 0.059 

2016–2018 ................................................................................................................................... 0.064 0.062 0.059 

2017–2019 ................................................................................................................................... 0.062 0.060 0.058 

2018–2020 ................................................................................................................................... 0.058 0.058 0.056 

2019–2021 ................................................................................................................................... 0.058 0.056 0.056 

Additionally, states can support the 

demonstration of continued 

maintenance by showing stable or 

improving air quality trends. According 

to EPA’s 2018 Resource Document, 

several kinds of analyses can be 

performed by states wishing to make 

such a showing. One approach is to take 

the most recent DV for the area and add 

the maximum DV increase (over one or 

more consecutive years) that has been 

observed in the area over the past 

several years. For an area with multiple 

monitors, the highest of the most recent 

DVs should be used. A sum that does 

not exceed the level of the 1997 ozone 

NAAQS may be a good indicator of 

expected continued attainment. As 

shown in Table 2 in this document, the 

largest DV increase in the Hampton 

Roads Area was 0.002 ppm, which 

occurred between the 2009–2011 (0.071 

ppm) and 2010–2012 (0.073 ppm) 

design value periods at one of the 

monitors located in Suffolk City (AQS 

ID 518000004). Adding 0.002 ppm to 

the highest DV for the 2019–2021 period 

(0.058 ppm at the Hampton City 

monitor AQS ID 516500008) results in 

0.060 ppm, a sum that is still below the 

1997 ozone NAAQS. 

DVs at all monitors located in the 

Hampton Roads Area have been below 

85% of the 1997 ozone NAAQS (i.e., 

0.071 ppm) since the 2012–2014 period. 

Additional supporting information that 

the Area is expected to continue to 

maintain the standard can be found in 

projections of future year DVs that EPA 

recently completed to assist states with 

the development of interstate transport 

SIPs for the 2015 8-hour ozone NAAQS. 

Those projections, made for the year 

2023, show that the highest DV at a 

monitor located in the Hampton Roads 

Area is expected to be 0.058 ppm.17 The 

Hampton Roads Area has maintained 

the air quality levels well below the 

1997 ozone NAAQS since the Area first 

attained the NAAQS in the 2003–2005 

timeframe.18 Therefore, EPA proposes to 

determine that future violations of the 


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19The first plan for the Hampton Roads 1997 

ozone NAAQS maintenance area used an end year 

of 2018. Therefore, this second maintenance plan 

must remain effective through December 31, 2028 

at a minimum. Virginia chose an end year of 2032 

for this second maintenance plan based on the 

availability of inventory information for that year. 

Since 2032 served as the end year of Virginia’s 

projected maintenance demonstration inventory, 

the plan should remain effective through December 

31, 2032. For more information, www.epa.gov/sites/ 

default/files/2018-11/documents/fact_sheet_1997_

ozone_maintenance_areas_resource_document_

nov_20_2018.pdf. 

20A violation of the NAAQS occurs when an 

area’s 3-year design value exceeds the NAAQS. 

21Model Rule Preamble: Architectural and 

Industrial Maintenance Coatings at otcair.org/ 

upload/Documents/Model%20Rules/AIM_

Preamble_Model_Rule.pdf. 

22OTC Model Rule for Consumer Products 

available at otcair.org/upload/Documents/ 

Model%20Rules/OTC%20CP%20

Model%20Rule%20Final%20Clean%202013

%20Revision%20Clean.pdf. 

23OTC Model Rule for Solvent Degreasing 2012 

available at otcair.org/upload/Documents/ 

Model%20Rules/2011%20OTC%20

Model%20Rule%20for%20Solvent%20Degreasing.

pdf. 

1997 ozone NAAQS in the Hampton 

Roads Area are unlikely. 

C. Continued Air Quality Monitoring 

and Verification of Continued 

Attainment 

Once an area has been redesignated to 

attainment, the state remains obligated 

to maintain an air quality network in 

accordance with 40 CFR part 58, in 

order to verify the area’s attainment 

status. In the September 9, 2022 

submittal, VADEQ commits to continue 

to operate their air monitoring network 

in accordance with 40 CFR part 58. 

VADEQ also commits to track the 

attainment status of the Hampton Roads 

Area for the 1997 ozone NAAQS 

through the review of air quality and 

emissions data during the second 

maintenance period. EPA has analyzed 

the commitments in VADEQ’s submittal 

and is proposing to determine that they 

meet the requirements for continued air 

quality monitoring and verification of 

continued attainment. 

D. Contingency Plan 

The contingency plan provisions are 

designed to promptly correct or prevent 

a violation of the NAAQS that might 

occur after redesignation of an area to 

attainment. Section 175A of the CAA 

requires that a maintenance plan 

include such contingency measures as 

EPA deems necessary to assure that the 

state will promptly correct a violation of 

the NAAQS that occurs after 

redesignation. The maintenance plan 

should identify the contingency 

measures to be adopted, a schedule and 

procedure for adoption and 

implementation of the contingency 

measures, and a time limit for action by 

the state. The state should also identify 

specific indicators to be used to 

determine when the contingency 

measures need to be adopted and 

implemented. The maintenance plan 

must require that the state will 

implement all pollution control 

measures that were contained in the SIP 

before redesignation of the area to 

attainment. See section 175A(d) of the 

CAA. 

VADEQ’s September 9, 2022 

submittal includes a contingency plan 

for the Hampton Roads Area. Virginia 

has pledged to execute all actions 

related to the regulation of NOX and 

VOC contained in the SIP for the 

Hampton Roads area before 

redesignation to attainment and 

demonstration of maintenance status. 

Once the maintenance plan expires on 

December 31, 2032,19 general 

conformity and transportation 

conformity requirements will not be 

applicable anymore. To avoid future 

violation of ozone NAAQS,20 the 

maintenance plan has included 

contingency measures that VADEQ will 

implement if triggered under two main 

scenarios. 

First, if there is an actual increase in 

the emissions of VOC or NOX above the 

inventory of the attainment year, such 

surges will be detected or predicted 

through the development of a 

comprehensive period tracking 

inventory, such as the NEI. Tracking 

this information is important because an 

increase in emissions of VOC and NOX

above the attainment year inventory 

could be an early warning sign of a 

possible NAAQS exceedance or 

violation. VADEQ will track the 

observed growth rates for vehicle miles 

traveled, population, and point source 

VOC and NOX emissions annually. 

Comprehensive tracking of inventories 

as part of the NEI will also be developed 

in collaboration with EPA every three 

years using current EPA-approved 

methods for estimating emissions. In the 

improbable event that estimated 

emissions in the Hampton Roads Area 

increase above the attainment year 

budget, VADEQ will perform a complete 

VOC and NOX emissions inventory 

assessment. If this analysis indicates 

that regional emissions of NOX or VOC 

surpass the attainment year levels, 

VADEQ will put in place one or more 

control measures which are mentioned 

in Table 3 of this document but are not 

yet implemented. 

Second, VADEQ will use recorded 

ozone readings to monitor for ozone 

NAAQS exceedances and violations. 

The 1997 ozone NAAQS is exceeded 

when an annual fourth-highest, eighthour average of 0.085 ppm or higher is 

recorded by any ozone monitor in the 

area. In the unlikely event that monitor 

registers an exceedance, VADEQ will 

implement one yet unimplemented 

control measure listed in Table 3 in this 

document. The 1997 ozone NAAQS is 

violated when a three-year average of 

each annual fourth-highest, eight-hour 

average of 0.085 ppm or higher is 

recorded by any ozone monitor in the 

area. In the unlikely event that a 

monitor registers a violation, VADEQ 

will implement one yet unimplemented 

control measure listed in Table 3 in this 

document. If an ozone monitor registers 

a second violation after the 

implementation of a contingency 

measure in response to the first 

violation, VADEQ will implement one 

additional yet unimplemented control 

listed in Table 3 in this document. 

TABLE 3—HAMPTON ROADS AREA SECOND MAINTENANCE PLAN CONTINGENCY MEASURES

Program Description 

OTC Architectural and Industrial (AIM) Coating Model Rule dated October 13, 2014 21.Rule provides additional requirements reducing emissions from the AIM 

source category. 

OTC Model Rule for Consumer Products dated May 21, 2013 22 ........... Rule provides additional requirements reducing emissions from the 

Consumer Product source category. 

OTC Model Rule for Solvent Degreasing dated 2012 23 ......................... Rule provides additional requirements reducing emissions from the solvent degreasing category. 

Article 51 of 9VAC5 Chapter 40, Emission Standards for Stationary 

Sources Subject to Case-by-Case RACT Determinations.

Application of NOX Reasonably Available Control Technology (RACT) 

on facilities with a potential to emit of at least 100 tpy NOX. 

Article 51 of 9VAC5 Chapter 40, Emission Standards for Stationary 

Sources Subject to Case-by-Case RACT Determinations.

Application of VOC RACT on facilities with a potential to emit of at 

least 100 tpy VOC. 


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The following schedule applies to 

contingency measures should they need 

to be implemented due to exceedances 

or violations of the 1997 ozone NAAQS: 

D Notification received from EPA that 

a contingency measure must be 

implemented or three months after a 

recorded exceedance or violation is 

certified. 

D Applicable regulation to be adopted 

6 months after this date. 

D Applicable regulation to be 

implemented 6 months after adoption. 

D Compliance with regulation to be 

achieved within 12 months of adoption. 

EPA proposes to find that the 

contingency plan included in VADEQ’s 

September 9, 2022 submittal satisfies 

the pertinent requirements of CAA 

section 175A(d). EPA also finds that the 

submittal acknowledges Virginia’s 

continuing requirement to implement 

all pollution control measures that were 

contained in the SIP before 

redesignation of the Hampton Roads 

Area to attainment. 

E. Transportation Conformity 

Transportation conformity is required 

by section 176(c) of the CAA. 

Conformity to a SIP means that 

transportation activities will not 

produce new air quality violations, 

worsen existing violations, or delay 

timely attainment of the NAAQS (CAA 

176(c)(1)(B)). EPA’s conformity rule at 

40 CFR part 93 requires that 

transportation plans, programs, and 

projects conform to SIPs and establish 

the criteria and procedures for 

determining whether or not they 

conform. The conformity rule generally 

requires a demonstration that emissions 

from the Regional Transportation Plan 

(RTP) and the Transportation 

Improvement Program (TIP) are 

consistent with the motor vehicle 

emissions budget (MVEB) contained in 

the control strategy SIP revision or 

maintenance plan (40 CFR 93.101, 

93.118, and 93.124). A MVEB is defined 

as ‘‘that portion of the total allowable 

emissions defined in the submitted or 

approved control strategy 

implementation plan revision or 

maintenance plan for a certain date for 

the purpose of meeting reasonable 

further progress milestones or 

demonstrating attainment or 

maintenance of the NAAQS, for any 

criteria pollutant or its precursors, 

allocated to highway and transit vehicle 

use and emissions (40 CFR 93.101).’’ 

Under the conformity rule, LMP areas 

may demonstrate conformity without a 

regional emission analysis (40 CFR 

93.109(e)). However, because LMP areas 

are still maintenance areas, certain 

aspects of transportation conformity 

determinations still will be required for 

transportation plans, programs, and 

projects. Specifically, for such 

determination, RTPs, TIPs and 

transportation projects still will have to 

demonstrate that they are fiscally 

constrained (40 CFR 93.108), meet the 

criteria for consultation (40 CFR 93.105 

and 93.112) and transportation control 

measure implementation in the 

conformity rule provisions (40 CFR 

93.113). 

Additionally, conformity 

determinations for RTPs and TIPs, must 

be determined no less frequently than 

every four years, and conformity of 

transportation plan and TIP 

amendments and transportation projects 

is demonstrated in accordance with the 

timing requirements specified in 40 CFR 

93.104. In addition, for projects to be 

approved, they must come from a 

currently conforming RTP and TIP (40 

CFR 93.114 and 93.115). The Hampton 

Roads Area remains under the 

obligation to meet the applicable 

conformity requirements for the 1997 

ozone NAAQS. 

III. Proposed Action 

EPA’s review of VADEQ’s September 

9, 2022 submittal indicates that 

Hampton Roads Area second 

maintenance plan meets the CAA 

section 175A and all applicable CAA 

requirements. EPA is proposing to 

approve the second maintenance plan 

for the Hampton Roads Area as a 

revision to the Virginia SIP. EPA is 

soliciting public comments on the 

issues discussed in this document. 

These comments will be considered 

before taking final action. 

IV. General Information Pertaining to 

SIP Submittals From the 

Commonwealth of Virginia 

In 1995, Virginia adopted legislation 

that provides, subject to certain 

conditions, for an environmental 

assessment (audit) ‘‘privilege’’ for 

voluntary compliance evaluations 

performed by a regulated entity. The 

legislation further addresses the relative 

burden of proof for parties either 

asserting the privilege or seeking 

disclosure of documents for which the 

privilege is claimed. Virginia’s 

legislation also provides, subject to 

certain conditions, for a penalty waiver 

for violations of environmental laws 

when a regulated entity discovers such 

violations pursuant to a voluntary 

compliance evaluation and voluntarily 

discloses such violations to the 

Commonwealth and takes prompt and 

appropriate measures to remedy the 

violations. Virginia’s Voluntary 

Environmental Assessment Privilege 

Law, Va. Code Sec. 10.11198, provides 

a privilege that protects from disclosure 

documents and information about the 

content of those documents that are the 

product of a voluntary environmental 

assessment. The Privilege Law does not 

extend to documents or information 

that: (1) are generated or developed 

before the commencement of a 

voluntary environmental assessment; (2) 

are prepared independently of the 

assessment process; (3) demonstrate a 

clear, imminent and substantial danger 

to the public health or environment; or 

(4) are required by law. 

On January 12, 1998, the 

Commonwealth of Virginia Office of the 

Attorney General provided a legal 

opinion that states that the Privilege 

law, Va. Code Sec. 10.11198, precludes 

granting a privilege to documents and 

information ‘‘required by law,’’ 

including documents and information 

‘‘required by Federal law to maintain 

program delegation, authorization or 

approval,’’ since Virginia must ‘‘enforce 

Federally authorized environmental 

programs in a manner that is no less 

stringent than their Federal 

counterparts. . . .’’ The opinion 

concludes that ‘‘[r]egarding § 10.1–1198, 

therefore, documents or other 

information needed for civil or criminal 

enforcement under one of these 

programs could not be privileged 

because such documents and 

information are essential to pursuing 

enforcement in a manner required by 

Federal law to maintain program 

delegation, authorization or approval.’’ 

Virginia’s Immunity law, Va. Code 

Sec. 10.11199, provides that ‘‘[t]o the 

extent consistent with requirements 

imposed by Federal law,’’ any person 

making a voluntary disclosure of 

information to a state agency regarding 

a violation of an environmental statute, 

regulation, permit, or administrative 

order is granted immunity from 

administrative or civil penalty. The 

Attorney General’s January 12, 1998, 

opinion states that the quoted language 

renders this statute inapplicable to 

enforcement of any federally authorized 

programs, since ‘‘no immunity could be 

afforded from administrative, civil, or 

criminal penalties because granting 

such immunity would not be consistent 

with Federal law, which is one of the 

criteria for immunity.’’ 

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its 

program consistent with the Federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 


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57026 Federal Register / Vol. 88, No. 161 / Tuesday, August 22, 2023 / Proposed Rules 

have any impact on Federal 

enforcement authorities, EPA may at 

any time invoke its authority under the 

CAA, including, for example, sections 

113, 167, 205, 211 or 213, to enforce the 

requirements or prohibitions of the state 

plan, independently of any state 

enforcement effort. In addition, citizen 

enforcement under section 304 of the 

CAA is likewise unaffected by this, or 

any, state audit privilege or immunity 

law. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

The SIP is not approved to apply on 

any Indian reservation land as defined 

in 18 U.S.C. 1151 or in any other area 

where EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule pertaining to Virginia’s 

1997 8-Hour Ozone National Ambient 

Air Quality Standard Second 

Maintenance Plan for the Hampton 

Roads Area does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

Executive Order 12898 (Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ EPA further 

defines the term fair treatment to mean 

that ‘‘no group of people should bear a 

disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

VADEQ did not evaluate 

environmental justice considerations as 

part of its SIP submittal; the CAA and 

applicable implementing regulations 

neither prohibit nor require such an 

evaluation. EPA did not perform an EJ 

analysis and did not consider EJ in this 

action. Consideration of EJ is not 

required as part of this action, and there 

is no information in the record 

inconsistent with the stated goal of E.O. 

12898 of achieving environmental 

justice for people of color, low-income 

populations, and Indigenous peoples. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Volatile organic compounds. 

Adam Ortiz, 

Regional Administrator, Region III. 

[FR Doc. 2023–18048 Filed 8–21–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2023–0409; FRL–11232–01– 

OCSPP] 

RIN 2070–ZA16 

Phenol; Revoking Exemption From the 

Requirement of a Pesticide Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to revoke 

the tolerance exemption for residues of 

the antimicrobial pesticide ingredient 

phenol when used as an inert ingredient 

(solvent/cosolvent) in pesticide 

formulations applied to growing crops. 

This rulemaking is proposed on the 

Agency’s own initiative under the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA) to implement a tolerance 

action the Agency determined was 

appropriate during the registration 

review conducted under the Federal 

Insecticide, Fungicide, and Rodenticide 

Act (FIFRA) for phenol. EPA is 

proposing to revoke this tolerance 

exemption because it corresponds to a 

use no longer current or registered 

under FIFRA in the United States. 

DATES: Comments must be received on 

or before October 23, 2023. 

ADDRESSES: The docket for this action, 

identified by docket identification (ID) 

number EPA–HQ–OPP–2023–0409, is 

available at https://www.regulations.gov 

or at the Office of Pesticide Programs 

Regulatory Public Docket (OPP Docket) 

in the Environmental Protection Agency 

Docket Center (EPA/DC), West William 

Jefferson Clinton Bldg., Rm. 3334, 1301 

Constitution Ave. NW, Washington, DC 

20460–0001. The Public Reading Room 

is open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room and the OPP 

Docket is (202) 566–1744. Please review 

the visitor instructions and additional 

information about the docket available 

at https://www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Anita Pease, Antimicrobials Division 

(7508P), Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW, Washington, DC 

20460–0001; telephone number: 202– 

566–0736; email address: pease.anita@

epa.gov. 

SUPPLEMENTARY INFORMATION: 


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